#### CITY OF RALEIGH v. CAROLINA POWER AND LIGHT COMPANY.

(Filed 31 March, 1920.)

Parties— Damages— Pleadings— Demurrer— Cities and Towns— Ordinances — Bridges—Railroads.

In an action by a city to recover tbe extra cost of a bridge on its street across a railroad cut made necessary by tbe use thereof by a street railway company, tbe complaint alleged that tbe railroad company bad built the bridge, and that under an existing ordinance each such company using tbe bridge should pay its proportionate cost, and demanded that it recover of tbe defendant street railway company tbe amount of tbe extra cost made necessary by its use of tbe bridge. Held, a demurrer was good on tbe ground that tbe railroad company, having built tbe bridge, evidently bad paid tbe amount in suit, and therefore tbe city, tbe plaintiff in tbe action, could not recover it from defendant street railway company.

Civil action, tried before Guión, J., at the November Civil Term, 1919, of Wake.

The court rendered judgment dismissing the action upon the pleadings. Plaintiff appealed.

The following is a copy of the complaint:

“The plaintiff, complaining of the defendant, alleges:

“1. That the plaintiff is a duly incorporated municipal corporation of the State of North Carolina.

*381“2. Tbat tbe defendant is a corporation organized and existing and by virtue of tbe laws of tbe State of North Carolina, witb its principal place of businéss in tbe city of Raleigb, N. C.

“3. Tbat at tbe time hereinafter alleged, tbe defendant was engaged in tbe operation of a street railway in tbe city of Raleigb under a charter granted by said city.

“4. Tbat at tbe time hereinafter alleged tbe Seaboard Air Line Railway was a corporation duly incorporated under tbe laws of Virginia, North Carolina, and other States, and was engaged in tbe operation of a line of railroad extending through tbe city of Raleigb.

“5. Tbat in tbe construction of tbe Raleigb & Gaston Railroad Company, predecessor of tbe Seaboard Air Line Railway, it became necessary to construct a bridge at tbe point where Hillsboro Street in tbe city of Raleigb crossed tbe track of said Raleigb & Gaston Railroad Company, and said bridge was constructed of wood and was in existence at tbe time of tbe passage of tbe ordinance by tbe city of Raleigb hereinafter referred to.

“6. Tbat tbe board of aldermen of tbe city of Raleigb on . July? 1912, enacted an ordinance requiring tbe Seaboard Air Line Railway to replace said wooden bridge witb a steel or reinforced concrete bridge of design and plan to be approved by tbe board of Aldermen enacted tbe following sections:

“ ‘See. 14. Tbat where in tbe city of Raleigb any bridge or bridges crossing any street at, above, or below street level, other than those bridges owned, built, and maintained wholly by tbe city of Raleigb, are built, replaced, repaired, remodeled, or renewed, and any company operating street cars or other modes of transportation by which cars are operated on fixed or stationary track or tracks laid in tbe streets of tbe city of Raleigb, and such track or tracks shall cross such bridge or bridges, then tbe person, firm, or corporation operating said street track shall join witb tbe other parties building, replacing, repairing, remodeling, or maintaining such bridge or bridges, and shall pay its or'their proportionate share of tbe cost of building, constructing, renewing, remodeling, repairing, or maintaining such bridge or bridges.

“ ‘(a) Tbat if any person, firm, or corporation operating street cars or other mode of transportation over fixed or laid track or tracks on tbe streets of Raleigb, whose said tracks shall cross any such bridge or bridges, shall refuse or for fifteen days fail to join witb tbe other parties in building, constructing, renewing,, repairing, or maintaining any such bridge or bridges, or to pay their proportionate cost of tbe same after1 having been requested in writing to join therein, then tbe person, firm, or corporation so failing or refusing to do shall be subject to a penalty of fifty dollars for every day or part thereof for which they refuse or *382fail to join in tbe building, constructing, repairing, renewing, remodeling, or maintaining sucb bridge or bridges, and every day’s failure or refusal to so join in tbe building, repairing, remodeling, or maintaining sucb bridge or bridges, shall be and constitute a separate and distinct offense.’

“7. Tbat, as required by said ordinance, tbe Seaboard Air Line Railway, replaced tbe said wooden bridge wi'tb a bridge of reinforced concrete of a design and according to plans approved by tbe board of aider-men of tbe city of Raleigb, and tbe construction of said bridge was done in sucb manner and under tbe approval of tbe street commissioner of tbe city of Raleigb.

“8. Prior to tbe commencement of tbe construction of said bridge, tbe Carolina Power & Light Company, a corporation engaged in operating street cars on a stationary track across and upon said bridge, was requested to join in building tbe reinforced concrete bridge by which tbe wooden bridge was to be replaced, as required by tbe said ordinance of tbe city of Raleigb, and tbe said Carolina Power & Light Company refused, and for fifteen days failed to join with tbe Seaboard Air Line Railway in constructing said reinforced concrete bridge, and tbe said company refused to pay its proportionate part of tbe cost of same after having been requested in writing to join therein.

“9. Tbat tbe construction of tbe reinforced concrete bridge to replace tbe wooden bridge was completed at a total cost of $12,496.21.

“10. Tbat a bridge of tbe character required by tbe traffic on Hills-boro Street, other than tbe cars of tbe Carolina Power & Light Company, could have been constructed for tbe sum of $8,803.44.

“11. Tbat tbe Carolina Power & Light Company’s proportionate part of tbe cost of said bridge is $3,692.77, which is a sum equivalent to tbe difference in tbe cost of tbe bridge if it bad been built of sufficient strength and size for ordinary traffic crossing said bridge, and tbe cost of tbe bridge when constructed of sufficient size and strength for use by tbe Carolina Power & Light Company in operating its cars across tbe same in safety.

“12. Tbat prior to tbe commencement of this action tbe Carolina Power & Light Company was called upon to make payment of tbe said sum of $3,692.77, and has failed and refused to do so.

“Wherefore plaintiff demands judgment tbat it recover of tbe defendant, Carolina Power & Light Company, tbe sum of $3,692.77, with interest thereon from 29 January, 1914, until paid, and tbe costs of this action to be taxed by tbe clerk. JohN W. HiNsdale, Je.,

Attorney for Plaintiff.”

John W. Hinsdale, Jr., and Murray Allen for plaintiff.

James H. Pou and W. L. Currie for, defendant.

*383Brown, J.

We agree witb the counsel for the defendant tbat the complaint states no canse of action in bebalf of the plaintiff against the defendant. Tbe Seaboard Air Line Railway is no party to tbis action, and seeks no judgment against the defendant, and wbat rights it may have against the defendant is not for us to determine in tbis action.

It appears from the complaint tbat the Seaboard Air Line Railway replaced the wooden bridge oyer its tracks as they crossed Hillsboro Street witb a bridge of reinforced concrete, approved by the defendant’s authorities. It further appears tbat the construction of the said bridge cost the Seaboard Air Line Railway $12,496.21. Tbe plaintiff demands judgment against the defendant for the sum of $3,692.77, which it is alleged is the proportionate part of the cost of said bridge which the defendant should pay. There is no allegation in the complaint tbat the plaintiff, the city of Raleigh, paid one penny for the erection of the said concrete bridge. Upon wbat theory the plaintiff can recover when it has paid out nothing we are unable to see. Tbe entire complaint discloses clearly tbat the purpose of the action is to recover money of the defendant which was paid out by the Seaboard Air Line Railway Company.

We think the complaint fails to state a cause of action in bebalf of the plaintiff, and tbat the action was properly dismissed.

Affirmed.